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Proportionality as a Limit on Preventive Justice


Promises and Pitfalls

Carol S Steiker*

Much scholarly ink has been spilled attempting to demarcate a coherent and
predictable line between state punishment and (mere) prevention, because different
substantive and procedural limits on state power have been assumed to prevail in
the two contexts. The substantive and procedural limits on the state as criminal
punisher, while always in dispute, are considerably clearer than the limits on the
preventive state. This gap exists because for much of human history, the state has
prevented future criminal offending largely through punishing, relying on the
deterrent, incapacitative, rehabilitative, and expressive functions of criminal pun-
ishment. Thus, history has provided many examples of the dangers that the tool of
criminal punishment can pose in the hands of a malicious or autocratic state. Only
quite recently have modern states amassed the power, knowledge, and institutions
to undertake large-scale preventive projects, like the monitoring, treatment, re-
straint, and/or removal of juvenile offenders, the mentally ill, dangerous sex
offenders, and terrorist suspects. The post-9/11 world has pushed the issue of the
scope of state preventive regulation more to the fore than it has ever been in the
past, raising profound questions about how we should delineate the substantive and
procedural limits of the states power to prevent harmful or undesirable conduct.
Both enthusiasts and sceptics of the development of the new preventive state
frequently resort to the principle of proportionalitythe former as a reason not to
worry too much about (at least some) preventive innovations,1 and the latter as
a prescription for severely restricting the turn toward preventive policies.2 The
question this chapter addresses is how far the principle of proportionality can take
us in delineating the proper constraints on prevention outside the criminal justice

* For helpful comments and suggestions, I thank Vicki Jackson, Jordan Steiker, and participants in
the Preventive Justice seminar at All Souls College, Oxford, as well as participants in faculty workshops
at American University Washington College of Law and at Hebrew University.
1 C Slobogin, A Jurisprudence of Dangerousness (2003) 98(1) Northwestern University Law

Review (defending a regime of preventive detention of undeterrable offenders if limited by propor-


tionality).
2 R Kitai-Sangero, The Limits of Preventive Detention (2009) 40 McGeorge Law Review 903

(arguing for proportionality as one of the necessary strict limits on the use of preventive detention
designed to make the practice very difcult under normal circumstances).

Prevention and the Limits of the Criminal Law. Andrew Ashworth, Lucia Zedner and Patrick Tomlin.
Oxford University Press 2013. Published 2013 by Oxford University Press.
Proportionality as a Limit on Preventive Justice 195

system. What kinds of issues are encompassed within the proportionality rubric?
Which concerns about preventive policies might be addressed by a proportionality
limit? What difculties or drawbacks does an assessment of proportionality pose?
In short, what are the promises and pitfalls of proportionality as a limit on the
non-punitive, preventive state?
This inquiry brackets the prior question of whether and to what extent purely
preventive policies are justied outside the criminal justice system (or within it, for
that matter). Proportionality is not a justicatory theory of prevention (any more
than it is a justicatory theory of punishment). However, those who have offered
various justicatory theories for non-penal prevention generally agree, despite their
differences, that proportionality should be considered a key constraining feature.3
Moreover, it is widely accepted that a proportionality constraintunlike, for
example, a constraint against ex post facto lawmaking or double jeopardyis one
that should limit the state outside the sphere of formal criminal regulation.4 Thus,
the contours and signicance of this central constraint are worth investigating.
In considering the role of proportionality as a constraint on prevention, it is not
necessary (and might even be counterproductive) to start from scratch. The concept
of proportionality is already well developed, both normatively and legally, on the
punitive side of the punitive/preventive line. There may be lessons to learn from this
rich vein, both positive and negative. Of course, any corresponding concept of
proportionality on the preventive side of the line will necessarily diverge from its
punitive counterpart in light of divergences in the purposes and practices of punish-
ment and prevention. But the two concepts cannot be hermetically sealed off from
one another, because changes in the nature of the proportionality constraint on one
side of the punitive/preventive divide may well have implications for the other.
On the punitive side, proportionality operates both as a moral and as a legal
constraint. In moral theory, proportionality is generally associated with retributi-
vism, which justies (or at least authorizes) punishment that is proportional to an
offenders desert, which itself is the product of the gravity of the offenders crime
and the offenders degree of culpability for that crime. However, consequentialist
theories of punishment posit a moral limit on punishment, too: punishment that
exceeds that necessary to bring about the good consequences that justify it is
nothing more than the gratuitous iniction of pain, as Bentham recognized with

3 AM Dershowitz, Preemption: A Knife That Cuts Both Ways (2006) 234 (proportionality key

to societal self-defence theory of prevention); KK Ferzan, Beyond Crime and Commitment:


Justifying Liberty Deprivations of the Dangerous and Responsible (2011) 96 Minnesota Law
Review 141, 173 (proportionality key to liability-based theory of prevention); Kitai-Sangero
(cited in n 2) 9289 (proportionality key to presumption of innocence theory of prevention);
Slobogin (cited in n 1) 503 (proportionality key to undeterrability theory of prevention).
4 European Union, Charter of Fundamental Rights of the European Union (7 December 2000),

Ofcial Journal of the European Communities (18 December 2000) (2000/C 364/01), available at:
<http://www.europarl.europa.eu/charter/pdf/text_en.pdf> (imposing the principle of proportionality
in Article 52 as a general limit on governmental power, in contrast to the principle of non-retroactivity
in Art 49, which is conned to the penal realm); cf BMW of North America v Gore, 517 US 559 (1996)
(applying the Eighth Amendments proportionality principle outside the criminal justice system to civil
punitive damages), with Kansas v Hendricks, 521 US 346 (1997) (civil statute providing for preventive
commitment of sex offenders could be not challenged on double jeopardy or ex post facto grounds).
196 Carol S Steiker
his parsimony principle.5 On the legal side, the United States Supreme Court has
held that the Eighth Amendments proscription of cruel and unusual punishments
imposes a (limited) proportionality constraint, but has declared the federal consti-
tution ecumenical with regard to theories of punishment.6 Thus, in the non-capital
context, the Court asks whether a particular punishment is grossly disproportionate
to the promotion of any legitimate penological purpose,7 and in the capital context,
it tends to ask whether a capital sentence is excessive with regard to the twin goals
of retribution and deterrence (apparently excluding incapacitation).8 The Court
has also applied proportionality as a Due Process constraint on the imposition of
punitive damages in civil cases, holding that such awards are unconstitutional when
they are grossly excessive in relation to the states legitimate interests in punishment
(retribution) or deterrence.9 Interestingly, the Court has been quicker to deem
punitive damages awards grossly out of proportion to state purposes than to deem
criminal sentences disproportionate.
From either a moral or a legal perspective, the proportionality constraint on non-
penal preventive policies, by denition, cannot be geared toward the retributive
metric of desert, but rather toward the metric of dangerousness.10 Thus, instead of
focusing on degrees of offence severity and offender culpability, the proportionality
inquiry for preventive purposes must focus on the degree of harm sought to be
averted and the likelihood that the harm would occur in the absence of prevention.
Such an inquiry should, like the proportionality inquiry with respect to retribution,
be able to generate a spectrum of both dangerousness and permissibly proportion-
ate responses along that spectrum. Just as it is not necessarily fatal to retributivism

5 J Bentham, The Rationale of Punishment (1830) 23 (All punishment being in itself evil, upon the

principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises
to exclude some greater evil).
6 Powell v Texas, 392 US 514, 533 (1968) (rejecting role for the Court under the Eighth

Amendment as the ultimate arbiter of the standards of criminal responsibility, in diverse areas of
the criminal law, throughout the country); Harmelin v Michigan, 501 US 957, 998 (1991) (noting
that the Eighth Amendment does not mandate adoption of any one penological theory) (Kennedy
J concurring in part and concurring in judgment).
7 Ewing v California, 538 US 11, 25 (2003).
8 Gregg v Georgia, 428 US 153, 183 (1976) (identifying retribution and deterrence of capital

crimes by prospective offenders as the penological purposes served by the death penalty).
9 BMW of North America v Gore, 517 US 559, 568 (1996).
10 A number of theorists wish to constrain preventive practices either by conning them entirely

within retributive punishment, see D Husak, this volume; D Husak, Lifting the Cloak: Preventive
Detention as Punishment (2011) 48 San Diego Law Review 1173; or by basing them on some notion
of forfeiture for wrongdoing, see KK Ferzan (cited in n 3); A Walen, A Punitive Precondition for
Preventive Detention: Lost Status as a Foundation for a Lost Immunity (2011) 48 San Diego Law
Review 1229. For these theorists, proportionality would include reference to culpability, because
culpability plays a part in their attempts to justify and limit the practice of preventive detention.
Because this chapter brackets the justicatory question, it starts with a notion of pure prevention
outside the punitive context and asks what the concept of proportionality must necessarily include.
While culpability could (or even must) be encompassed within proportionality in the limited prevent-
ive regimes proposed by Husak et al, it is not necessarily encompassed within the concept of propor-
tional prevention in the absence of acceptance of some prior constraining theory like that of Husak (or
others).
Proportionality as a Limit on Preventive Justice 197

that it may not be able to specify a single exactly proportionate response for any
given offence, so one should not expect that a proportionality inquiry will generate
a precisely proportionate preventive response to any determination of dangerous-
ness: the identication of a range of permissible responses should count as a
workable proportionality constraint.
The range of current preventive policies is tremendously broad, from relatively
small deprivations of privacy or liberty (state monitoring, reporting requirements,
restrictions on travel, etc) to long-term connement. Although a proportionality
constraint might usefully sort out the legitimate applicability of lesser deprivations,
I will take as my paradigm example the most problematic form of non-penal
preventionthe use of long-term connementand ask how a proportionality
constraint can help us know in what circumstances such connements are permis-
sible and how long they may permissibly last. Those who are currently subject to
preventive connement in the USA present a range of diverse situations: they may
be dangerous but not responsible, as in the paradigm cases of juvenile offenders and
the mentally ill; they may be those deemed sexually violent predators who are
dangerous and have some degree of impaired responsibility; they may be those who
are fully responsible but who are deemed enemy combatants in the War on
Terror; or they may be those suspected of terrorist activities detained pursuant to
specic preventive legislation,11 or more commonly pursuant to pre-existing laws
dealing with immigration violations or the detention of material witnesses in
criminal investigations. How, if at all, does the constraint of proportionality take
account of and respond to this diverse range of circumstances?
In what follows, I will rst consider the ways in which the constraint of
proportionality might address some of the key issues surrounding the permissible
scope of preventive policies. Section A tries to answer the question how far the
preventive justice sceptic ought to be reassured by a robust proportionality limit.
Section B takes up difculties inherent in the application of a proportionality
constraint and also considers some less obvious costs of such a constraint.

A. Promises

First, let us consider how and to what extent a proportionality constraint on non-
penal preventive policies might address some of the most common concerns that
are raised about such policies.
Duration. One of the most commonly voiced reasons for uneasiness about
preventive connement is the open-ended nature of a grant of authority to conne.
How can a person who is found to meet whatever initial conditions are set for

11 The USA does not currently have a general provision for preventive detention of terrorist

suspects (which is largely the reason for the controversy over the Executives power to detain those
deemed enemy combatants). However, the USA PATRIOT Act does have a provision authorizing
preventive detention of foreign nationals suspected of terrorist afliations. See Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
(USA PATRIOT Act) Act of 2001, Pub. L. No. 10756, 115 Stat. 272 (2001), } 412.
198 Carol S Steiker
preventive connement ever overcome the presumption of continued dangerous-
ness? This concern lies in the background of justicatory accounts of certain kinds
of preventive connementsuch as pre-trial detention12 and the military deten-
tion of prisoners of waras these accounts generally emphasize the inherently
time-limited nature of the connement at issue and the assurance that the conne-
ment will be tailored to the temporary circumstances that necessitate it. However,
connements that are not so delimitedsuch as connement of sexual predators
after their penal sentences are served or of enemy combatants in a metaphorical,
global war on terrorsquarely raise the question of durational limit.
A proportionality constraint would clearly speak to the issue of duration, because
length of connement is the primary measure of the liberty deprivation at issue (using
preventive detention in a locked facility as our paradigm example), just as length of
sentence is the primary measure of the severity of criminal punishment (using
incarceration in a prison as our paradigm example). Because dangerousness is the
product of both the gravity of the harm sought to be prevented (such as the sexual
assault of a child, or the commission or facilitation of terrorist acts) and the probability
that such harm would occur in the absence of preventive intervention, the proportion-
ality of a preventive intervention uctuates with any uctuation in harm or probabil-
ity. Thus, a robust proportionality constraint would require some sort of monitoring
of changes in the kind of future harm that is predicted (eg the danger posed by a
committed sexual predator might shift from sexual assault to illegal pornography
use), as well as changes in the probability of future harm (eg therapeutic intervention
might diminish the likelihood of future offending by a sexual predator). Thus,
preventive detention must be accompanied by periodic review to establish that the
risk posed still exists at a sufcient level to justify continuing detention.
Moreover, one might conclude that the simple passage of time should presump-
tively diminish dangerousness, even in the absence of any positive reason (like
therapeutic intervention) for a diminution. The probability of future harm depends
not only on the inclinations but also on the capacities of those conned. Whether
or not a conned persons inclination toward future anti-social conduct is dimin-
ished or enhanced by connement, it seems fair to presume that some capacities
will inevitably decline with the passage of time. Physical and cognitive capacities
may decline with age,13 but even more predictably, a conned persons access to
information and connection with a dangerous cohort (eg in the terrorism context)
will be impaired over time. In addition, peoples propensity for criminal behaviour
(especially of certain types) is known to diminish with age. Moreover, the very fact
of connement itself may diminish a persons likelihood of future offending. For
example, publication (to authorities or to the public) of a persons record of
connement as a sexual predator may reduce the opportunities for the person to
offend upon release because of precautions that others might take. Similarly, the

12 See RA Duff, this volume.


13 Except, of course, in the context of the preventive detention of juvenile offendersin which
case, physical and cognitive capacities are presumed to improve with age, but in a fashion that similarly
diminishes the likelihood of future anti-social conduct.
Proportionality as a Limit on Preventive Justice 199

release from detention of terrorist suspects will put relevant authorities on alert and
also may make the former cohorts of those released suspicious of possible cooper-
ation with authorities. In short, condence in a judgement of dangerousness erodes
over time, leading some to argue that an appropriately robust proportionality
constraint should require automatic release after a certain period unless new
evidence of dangerousness is forthcoming.14
Of course, the devil here, as in most places, is in the details. How long a
maximum initial period of connement should be authorized at various points
along the spectrum of dangerousness? How much of an adjustment should be
triggered by the passage of time and/or the production of new evidence of
dangerousness? These questions are part of the general computational difculties
that will be addressed under the heading Calibration.15 The extent to which a
proportionality constraint can adequately address the problem of duration depends
on the plausibility of satisfactory resolution of such difculties.
Conditions of connement. The foregoing suggests that the uctuating calculus of
dangerousness during an individuals preventive connement may well be affected
by measures that state ofcials take, or fail to take, with regard to the treatment of
that individual while conned. The state should not be able to bootstrap continu-
ing connement on the basis of dangerousness that it has helped to create or
perpetuate as a result of its initial decision to conne. Thus, a robust proportion-
ality constraint may create obligations on state actors to take afrmative steps to
ameliorate dangerousness and to refrain from actions that might exacerbate it. For
example, if an individual (eg a sexual predator) is preventively conned for a
condition that is treatable by therapeutic intervention, then the state would have a
duty to take reasonable measures to provide such intervention. In Hendricks,16 the
Kansas Supreme Court invalidated its own states sexually violent predator com-
mitment statute partially on these grounds: the Court reasoned that the states
failure to provide therapeutic services to Hendricks revealed that it did not consider
him to be mentally ill, a condition that the Court held was a prerequisite for his
preventive commitment under the Due Process Clause.17 The US Supreme Court
reversed that decision, over a dissent by Breyer J that even more directly argued that
that the Due Process Clause requires Kansas to provide treatment that it concedes
is potentially available to a person whom it concedes is treatable.18 Breyer Js view

14 Slobogin (cited in n 1) 52.


15 See the beginning of section B, Pitfalls.
16 Kansas v Hendricks, 521 US 346 (1997).
17 Re Hendricks, 259 Kan. 246, 2578, 912 P.2d 129, 136 (1996).
18 Kansas v Hendricks 521 US at 378 (Breyer J dissenting). Cf the decision of the European Court of

Human Rights in M v Germany, App. No. 19359/04, Eur. Ct. H.R. } 129(2010), available at <http://
laboremiuris.kennedy.edu.ar/Documents/Tribunal%20Europeo%20Derechos%20Humanos% 20 %
20 M% 20v% 20 Germany% 20 RECLUSI %C 3% 93 N%20 INDETERMINADA % 20 DETENCI
%C3%93N%20PREVENTIVA%20(English%20Version).pdf> (holding that persons subject to
preventive detention orders must be afforded such support and care as part of a genuine attempt to
reduce the risk that they will reoffend, thus serving the purpose of crime prevention and making their
release possible).
200 Carol S Steiker
of a states substantive Due Process obligations to those whom it preventively
connes can be derived from a robust proportionality constraint.
Quite apart from the duty to provide therapeutic interventions for treatable
conditions, however, the duty to refrain from treatment that might exacerbate
dangerousness might well sweep even more broadly. Abusive treatment during
connement would clearly fall within this proscribed zone, but so might interference
with family ties or religious counselling or other activities or associations that would
help diminish a detainees dangerousness. Indeed, preventive detention in a penal
facility, such as a prison or a jail, might well presumptively violate the states duty to
refrain from imposing conditions of connement that may exacerbate dangerous-
ness. The scope of such a duty on the part of the state would obviously be subject to
some sort of rule of reasonableness, but even if so cabined, it might still have
considerable power. It would certainly be broader than the moral or legal duty
that the state has to avoid conditions of connement that would render criminal
punishment excessive or cruel and unusual under the Eighth Amendment,19
because criminal punishment is, by denition, premised on the notion of hard
treatment,20 while prevention is not. The constraint of proportionality provides part
of the reason why preventive connement cannot partake of such treatment.
Discrimination. One of the concerns that has dogged incapacitation as a goal in
both the non-penal preventive context and criminal sentencing (in the form of
selective incapacitation) is its tendency to promote the use of group-based pre-
dictive measures and to have discriminatory effects along the lines of race or other
protected characteristics.21 An under-appreciated feature of the constraint of pro-
portionality offers some potential to address this tendency. The concept of propor-
tionality has a comparative as well as an absolute dimension, both with regard to
penal sanctions and with regard to preventive connement. The absolute or
cardinal dimension of proportionality is the one that is most obvious and that
has been the focus of the discussion of non-penal prevention thus farthe
proportionality between the restrictiveness of a preventive measure and the degree
of dangerousness that it purports to address. But proportionality also has a com-
parative or ordinal dimension, and a deprivation could be considered dispropor-
tionate if it is more restrictive than one imposed on others of equal or greater
dangerousness, or even if it is far more restrictive than one imposed on others of
only slightly lesser dangerousness.22
Comparative or ordinal proportionality currently plays a role, though a limited one,
in the Eighth Amendment analysis of the proportionality of criminal punishment.

19 Farmer v Brennan, 511 US 825, 837 (1994) (holding that a prison ofcial cannot be found liable

under the Eighth Amendment for denying an inmate humane conditions of connement unless the
ofcial knows of and disregards an excessive risk to inmate health or safety).
20 HLA Hart, Prolegomenon to the Principles of Punishment in HLA Hart, Punishment and

Responsibility (1968) 1 (the standard or central case of punishment must involve pain or other
consequences normally considered unpleasant).
21 See generally BE Harcourt, Against Prediction: Proling, Policing, and Punishing in an Actuarial

Age (2007) (describing and critiquing the use of predictive instruments and their racial effects).
22 A von Hirsch, Censure and Sanctions (1993) 18 (comparing cardinal or absolute to ordinal or

comparative proportionality in penal sanctions).


Proportionality as a Limit on Preventive Justice 201

In non-capital cases, the Supreme Court has held that if a criminal sentence is grossly
disproportionate to the offence as a matter of absolute proportionality, then the court
will look at inter- and intra-jurisdictional comparisonsat how similar crimes are
treated in other jurisdictions, and how other crimes are treated within the sentencing
jurisdictionin order to gauge the ultimate proportionality of the sentence.23 In
capital sentencing, the treatment of similarly situated offenders across the country
plays a more central role in Eighth Amendment proportionality review, as a part of an
effort to divine evolving standards of decency.24 In both of these contexts, compara-
tive proportionality is evaluated in the service of absolute proportionality; the
failure of other jurisdictions to treat similarly situated offenders as severely as
the jurisdiction in question is evidence of the absolute disproportionality of the
challenged sentence.25 Several state supreme courts, however, have interpreted state
law to impose a more robust comparative proportionality constraint on capital
sentencing than the federal Eighth Amendment requires. For example, for years
before capital punishment was legislatively abolished in New Jersey in 2007, the New
Jersey Supreme Court applied a form of comparative proportionality review that used
statistical analysis to determine whether a particular capital sentence was out of line
with the sentences imposed for similar crimes.26 Here, the inquiry was not in the
service of discerning whether an initial inference of gross disproportionality was
warranted, or whether evolving standards forbade such a severe penalty; rather,
comparative proportionality review in New Jersey started from the premise that the
defendant was appropriately death eligible and asked simply whether the defendant
had been accorded equal treatmentan analysis that situated equality as the central
normative commitment of the enterprise.
The contrast between the federal constitutional approach and the New Jersey
approach to comparative proportionality reveals the potential roles that compara-
tive proportionality might play as a means of addressing inequality in the applica-
tion of preventive connement. On the one hand, if comparative proportionality is
merely an aid in assessing absolute proportionality, then inequalities in application
of preventive connement are relevant only to the extent that they demonstrate that
the preventive connement at issue is disproportionate for anyone who presents the
level of dangerousness of the targeted person or group. On the other hand, if the
constraint of proportionality contains within it an equality principle, then compara-
tive proportionality might play a more robust role in policing inequality. For
example, it might offer grounds to object to preventive measures, like parts of the

23 Ewing v California, 538 US 11 (2003) (nding no threshold inference of gross disproportionality

in a sentence of 25 years to life for a recidivist convicted of stealing four golf clubs and thus declining to
consider inter- and intra-jurisdictional comparisons).
24 Atkins v Virginia, 536 US 304 (2003) (nding a societal consensus against the execution of

offenders with mental retardation).


25 EJ Mandery, In Defense of Specic Proportionality Review (2002) 65 Albany Law Review 883

(defending the role of comparative proportionality review as a guide to absolute proportionality).


26 See generally Symposium: Legislation, Litigation, Reection & Repeal: The Legislative Aboli-

tion of the Death Penalty in New Jersey: Panel II: The Death Penalty on Appeal: Constitutionality,
Equality, and Proportionality Review (2008) 33 Seton Hall Legislative Journal 95.
202 Carol S Steiker
USA PATRIOT Act, that differentiate on the basis of citizenship status.27 Indeed,
the House of Lords invalidated an analogous provision of the United Kingdoms
anti-terrorism laws that allowed preventive detention of non-UK nationals, but not
of UK nationals, as disproportionate under the European Convention on Human
Rights.28 Even though the available evidence suggested that the terrorist threat
from UK nationals was quantitatively smaller than that from foreign nationals, it
was not qualitatively different, and thus the decision to address only the threat from
foreign nationals was found to be a disproportionate response to the threat. Such
reasoning suggests that the constraint of proportionality generally might limit the
extent to which differential burdens could be permitted to arise from inferences of
dangerousness drawn from racial, ethnic, or religious group membership.
Some might object that this more robust version of comparative proportionality
claims too much for itself and too little for equality, which is better conceived as an
independent normative commitment that places a side constraint on the pursuit of
proportionality, whether in punishment or prevention.29 This position draws some
support from the fact that only in the context of capital punishment has equality
been woven so closely into the fabric of comparative proportionality as a matter
of legal doctrine; outside the capital context, doctrines such as those prohibiting
selective prosecution under the Equal Protection Clause of the Fourteenth
Amendment are the natural vehicle for individual claims regarding unequal appli-
cation of the criminal law. However, as a normative matter, it remains an open
questionwhich deserves its own analysis in a separate paper or treatisehow
robust the equality component of the proportionality constraint ought to be,
particularly in the sphere of regulating preventive connement, as even sceptics
would accord it some role (if only evidentiary in assessments of absolute propor-
tionality). Thus, there remains some potential for proportionality to address
concerns about inequality and discrimination in the application of preventive
connement, depending on the normative persuasiveness of such an account.
Procedures. The constraint of proportionality has procedural as well as substan-
tive implications. The imposition of a preventive restraint is substantively dispro-
portionate if it is not proportionally calibrated to the proven danger at issue. But
preventive restraints can also be procedurally disproportionate if they are imposed
without sufciently reliable processes to prove the underlying danger. The degree
of procedural reliability that is required increases with the intrusiveness of the
preventive intervention at issue, with long-term connement requiring the greatest
assurances of reliability. This sliding scale of procedural protection depending on

27 D Cole and JX Dempsey, Terrorism and the Constitution: Sacricing Civil Liberties in the Name of

National Security (2006) 197 (criticizing the PATRIOT Act for reserving its harshest measures for
immigrants, measures directed predominantly at Arab and Muslim immigrants).
28 A v Secretary of State for the Home Department [2004] UKHL 56.
29 Indeed, the House of Lords also separately addressed the differentiation between UK nationals

and non-UK nationals as an issue of discrimination. See A v Secretary of State for the Home Department
(cited in n 28). See also MS Moore, Placing Blame: A Theory of Criminal Law (1997) 151 (acknow-
ledging the concern that attaining a certain form of justice may pose unacceptable costs to other
values).
Proportionality as a Limit on Preventive Justice 203

the deprivation at issue is classically captured in the constitutional protection of


due process of law for deprivations of life, liberty, and property, in descending
order of procedural protection. From this mandate has emerged the Supreme
Courts conclusion that virtually all of the protections of the criminal trial (with
the exception of the right to trial by jury) must attend a juvenile delinquency
proceeding that may result in institutional connement,30 and that lesser but still
demanding procedural protections must attend a civil commitment procedure of
those who are mentally ill and dangerous.31
While the principle of procedural proportionality clearly has some bite (eg, it
would not permit institutional connement to be adjudicated under the same
procedures as a much less intrusive intervention such as registration), it remains
unclear and highly contested how far the principle goes in specifying the precise
procedures required in any preventive context, or even their ordinal ranking. For
example, the failure to require proof beyond a reasonable doubt in the civil commit-
ment context (as compared to the juvenile delinquency context) remains controver-
sial. This controversy stems both from normative disagreement about what due
process of law requires in these contexts,32 as well as from the unexplained variation
in standards of proof across different preventive contexts.33 Moreover, given the
different purposes and contexts of various preventive interventions (rehabilitation as
opposed to pure incapacitation), it remains contested whether the procedures speci-
ed for criminal trials should be considered the gold standard from which all other
procedures descend along a linear spectrum. The Supreme Court recognized as much
when it excluded the right to jury trial from the juvenile court context on the grounds
that such a right was inconsistent with the idealistic prospect of an intimate, informal
protective proceeding.34 Taking this critique further, one commentator has argued
for a profound procedural restructuring of juvenile court, rejecting the adult rights or
no rights framework that has tended to govern the Due Process analysis.35 Such
continuing controversy suggests more than the inevitable indeterminacy of the Due
Process sliding scale; it suggests that the procedural structure of a proceeding cannot
be determined solely by the nature of the deprivation at issue. Rather, procedural
form is implicated by the normative theory that justies (if it does) the underlying
practice (punishment, involuntary rehabilitation of juvenile offenders, etc).36 Thus,
the principle of proportionality can go only so far in determining the necessary
procedures for preventive justice; the rest of the determination must be guided by

30 Re Gault, 387 U.S. 1 (1967).


31 Addington v Texas, 441 US 418 (1979) (requiring proof by clear and convincing evidence in
civil commitment hearings).
32 A Tsesis, Due Process in Civil Commitments (2011) 68 Washington & Lee Law Review 253

(arguing for requirement of proof beyond a reasonable doubt in civil commitment hearings).
33 In contrast to the civil commitment context, many sexually violent predator statutes (including

the one at issue in Kansas v Hendrickssee n 16) require proof beyond a reasonable doubt. See Tsesis
(cited in n 32) 27982.
34 McKeiver v Pennsylvania, 403 US 528, 545 (1971).
35 E Buss, The Missed Opportunity in Gault (2003) 70 University of Chicago Law Review 39.
36 Cf RA Duff et al, The Trial on Trial, Volume Three: Towards a Normative Theory of the Criminal

Trial (2007) (developing a normative account of procedural justice in criminal punishment).


204 Carol S Steiker
answering the question I have bracketed in this chapterthe normative justication(s)
for our practice(s) of preventive detention.
Even if the principle of proportionality cannot fully answer the question
of procedural form, it may still have some further procedural implications for
the preventive context. First, because prevention is inherently forward looking,
proportionality may require periodic review procedures to check the initial adjudi-
cation of dangerousness. Any initial adjudication will be premised on a nding of
dangerousness based on calculating both the gravity of the future harm and the
likelihood that the harm will occur in the absence of preventive intervention. Both
of these determinations, as noted earlier, in the discussion of Duration,37 are not
xed in the way that backward-looking judgments of harm and culpability are in
the context of retributive justice. Rather, both the nature of the predicted harm and
(especially) its likelihood of occurring are subject to uctuation with the passage of
time. Thus, even if proportionality does not impose, as some have suggested, a
nite limit on preventive connement based on a single adjudication of dangerous-
ness,38 it must at a minimum require some mechanism to respond to the very high
probability of changed circumstances. How frequently such reviews must occur,
and what the burden and standard of proof should be, are contestable, and are
dependent on the grounds for assuming the durability (or changeability) of the
initial determination in its particular context.
Secondly, because a determination of proportionality requires the calculation of the
likelihood of future harm, the proportionality constraint requires that such a calculus
be an individual one, rather than a conclusive presumption based on statutorily
dened categories. For example, it would violate the constraint of proportionality to
authorize a conclusive nding of dangerousness in the sex offender commitment
context based on the fact that an offender had been convicted of a certain number of
serious sex offences, without an opportunity for the offender to provide further
individualized information relating to the specic likelihood of re-offending. Just as
proportionality should be understood to pose constraints on the imposition of (at least
some) mandatory sentences as a matter of retributive justice,39 so, too, proportionality
should pose constraints on mandatory presumptions of dangerousness.
Finally, the constraint of proportionality may have implications for the question
of who should make determinations of dangerousness, in addition to how such
determinations should be made. The reason that proportionality is such a widely
accepted constraint on state action, in both the penal and non-penal realms, is that
it constitutes one of the primary means of delimiting state power. As Alice Ristroph
has helpfully explained, proportionality is best understood as a principle of limited

37 See the beginning of section A, Promises.


38 Slobogin (cited in n 1) 52 (arguing that proportionality in the preventive context requires
automatic release after a certain period unless new evidence of dangerousness is forthcoming).
39 As a matter of constitutional law, the Supreme Court has distinguished between mandatory

criminal and mandatory capital sentences, permitting the former but not the latter. Cf Woodson v North
Carolina, 428 US 280 (1976) (declaring mandatory capital sentencing unconstitutional under the
Eighth Amendment, with Ewing v California, 538 US 11 (2003) (upholding application of Californias
three strikes law against Eighth Amendment challenge)).
Proportionality as a Limit on Preventive Justice 205

government that sets the outer bounds of the states legitimate pursuit of its goals,
penological or otherwise.40 As such, Ristroph argues, the principle is crucially
linked to the concept of separation of powers.41 Ristroph argues that judicial
review, in particular, is the constitutional means by which proportionality can
serve as a limiting principle in both the penal and non-penal realms, in light of the
reasonable presumption that governmental bodies are ill-suited to judge the pro-
portional weight of their own ends, or to assess the adequacy of the t between their
ends and their means. If ever there was a context in which such a presumption is
warranted, it is in the context of state responses to dangerespecially grave and/or
immediate danger.42 This need for separation of powers in the preventive context
may work in tandem with the need, discussed in the preceding paragraph, for an
individualized determination of dangerousness to generate the procedural require-
ment of a judicial hearing from the constraint of proportionality. Thus, proportion-
ality might plausibly serve as a basis for rejecting military courts or other executive
branch ofcials as appropriate institutional actors to make determinations of the
dangerousness of suspected terrorists and the necessity for their connement.
Relationship to criminal prosecution. The fact that proportionality does not
necessarily demand that preventive justice provide the same procedural protections
as criminal justice leaves open the possibility of a gap in the protectiveness of the
procedures for punishment and preventiona gap that we in fact see in every
current preventive context. This gap creates an incentive for the state to develop
and use preventive measures in order to avoid the distinctive, costly procedural
protections of the criminal process. The constraint of proportionality may offer
some limited means to police this potentially perverse incentive. In cases in which
the state seeks preventive connement on grounds that could also give rise to
criminal chargesthat is, proof of dangerousness is founded substantially on the
commission of acts that are criminally proscribedthen perhaps proportionality
gives rise to a right to be punished before being preventively conned. The concept
of proportionality is widely understood to contain a tailoring elementa require-
ment that government action be the least restrictive means to achieve the govern-
ments end.43 Criminal punishment may well be viewed as a less restrictive
alternative than preventive connement, both because of the latters indenite
duration and lesser procedural protections, and because criminal punishment

40 A Ristroph, Proportionality as a Principle of Limited Government (2005) 55 Duke Law Journal

263. See also A Barak, Proportionality: Constitutional Rights and Their Limitations (2012) 21434
(exploring proportionalitys relationship to democracy and the rule of law); ET Sullivan and RS Frase,
Proportionality Principles in American Law: Controlling Excessive Government Actions (2008) (develop-
ing a theory of proportionality as an instrumental part of the rule of law and an essential check on
governmental power).
41 Ristroph (cited in n 40) 287 (The relation between proportionality and separation of powers

should be underscored.).
42 This is the same intuition that lies behind the constitutional requirement of a judicial warrant for

(some) searches and seizures under the Fourth Amendment.


43 RS Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: Pro-

portionality Relative to What? (2005) 89 Minnesota Law Review 571, 618.


206 Carol S Steiker
may obviate the need for prevention by rehabilitation or simply by the passage of
time and changed circumstances.
It may seem odd to suggest that criminal punishment is a lesser evil for defendants,
given its stigma (which is supposedly absent from preventive connement), its
miserable and often dangerous conditions of connement, and its frequently draco-
nian sentences. But surely preventive connement, too, carries stigma, occurs in
unpleasant conditions, and can last for long periods. Construing the choice to opt for
punishment over prevention as a right of the defendant (rather than a duty of the
government), allows defendants to assert the right when the procedural protections
and sentencing limits of criminal punishment are more attractive, and to waive the
right when they wish to trade off the procedural protections of a criminal trial for the
potentially less stigmatizing or harsh treatment of preventive connement. Thus, a
robust proportionality constraint may give defendants the right to choose punishment
over preventive connement when they deem it to be the less restrictive alternative.
Obviously, such a right could exist only for responsible actors; for irresponsible
actors, criminal prosecution is not a viable option. However, the context of responsible
(or partially responsible) but dangerous offenders has proven to be the context in which
the government is most likely to opt for new preventive innovations, as the regulation of
sexually violent predators and enemy combatants in the war on terror demonstrates.
To be sure, a right to opt for criminal punishment before prevention would be of little
use in legislative schemes that seek to continue the detention of criminal defendants
after their criminal sentences are completed, as is currently the primary focus of sexually
violent predator legislation. However, such a right would have teeth in forcing the
initial prosecution, as opposed to military detention, of terrorist suspects.44
It must be recognized that the limited nature of such a rightto be criminally
tried before (rather than instead of ) being preventively detainedmay often make
its use unattractive. After all, the main reason to claim the right is to receive the
distinctive procedural protections of a criminal trial. But if those procedural
protections actually produced an acquittal (or only a mild sanction), nothing in
the right to be tried rst would prevent the government from then seeking
preventive connement. This is exactly what US Attorney General Eric Holder
promised should key terrorist suspect Khalid Sheikh Mohammed be acquitted at
his (then) planned criminal trial.45 The only way to prevent such a heads I win,
tails you lose proposition is to posit a right of terrorist suspects to be tried instead of
detained. Some argue that such a right should exist as a function of the appropriate
normative limits on prevention, which should require criminal punishment rather
than prevention of all responsible actors as a matter of respect for their autonomy.46

44 RM Chesney, Terrorism, Criminal Prosecution, and the Preventive Detention Debate (2009)

50 South Texas Law Review 669 (describing the advent of and the controversy over the military
detention of terrorist suspects after 9/11).
45 M Isikoff, Heads I Win, Tails You Lose: In 9/11 Case, KSM Wont Walk Free Even If Found

Not Guilty Newsweek, 18 November 2009.


46 RA Duff et al (cited in n 36) 293 (arguing against preventive connement of responsible actors

because it den[ies] the detainees status as a responsible agent who is capable of acting for the right
reasons).
Proportionality as a Limit on Preventive Justice 207

The persuasiveness of such an account is a question that I bracket in this chapter;


however, what is important to see is that the conclusion that punishment must
wholly displace prevention for responsible actors is not one that is derivable from
the constraint of proportionality alone.47

B. Pitfalls

Despite its promise to speak to some of the issues that concern sceptics of
preventive policies, the constraint of proportionality also faces a number of dif-
culties in implementation. Even if these difculties could be successfully overcome,
preventive proportionality nonetheless poses some perhaps less obvious risks.
Calibration. The most obvious problem with preventive detention is the dif-
culty in measuring exactly the thing that calls it forththe probability of future
harm. This is the rst objection that is generally raised to preventive detention in all
of its guises, and it is an extremely powerful one, given the apparent fallibility of
such predictions. But the problem of calibration poses a number of further, less
obvious challenges as wellchallenges that are conceptual rather than practical.
Distinct from the question of the probability of a future harm is the prior question
of the nature of the harm at issue. For example, in the terrorism context, the
harm threatened by the release of a terrorist suspect may be the commission of a
specic terrorist act or it may be the suspects continued participation in an
organization that itself is predicted to be the source of unspecied terrorist acts.
The individual or organizational act or acts predicted may range from those causing
the death of others, to serious bodily injury, to some lesser bodily injury, to
property damage, or to more amorphous harm to national security interests.
A prediction of dangerousness requires an often hidden generalization about the
nature of the harm at issue, which is bound up in the difcult calculation of its
likelihood of occurrence.
Unpacking the distinct components of a calculation of dangerousness reveals a
further troubling issue for proportionality review that the growing threat of
terrorism has brought to the fore: the problem of low-risk/high-harm suspects.
Some terrorism suspects are clearly involved in organizations that are much to be
feared, committed as they are to inicting harms of catastrophic proportions.
But those suspects may well be little shknowingly engaged in the terrorist
enterprise (and therefore posing a high probability of continued support for
the enterprise if released), but not of central importance to the enterprise and
therefore not likely to be critical to the success of its future operations. Emblematic
of this problem is the case of Osama bin Ladens driver, Salim Ahmed Hamdan, a
Yemeni national captured when the USA invaded Afghanistan in November 2001,
and detained at Guantanamo Bay until his trial by military commission nearly
seven years later. Hamdan worked close to the epicentre of al Qaeda in his role as

47 If anything, the relationship goes the other way: the constraint of proportionality derives from

the same respect for autonomy that drives the normative account privileging punishment over
prevention.
208 Carol S Steiker
Osama bin Ladens driver and bodyguard, but his contributions to its terrorist
activities were necessarily limited, given his fourth-grade education and low status
within the organization. A juror on the military commission that convicted him of
material support of terrorism, but acquitted him of the greater charge of conspir-
acy to commit terrorist acts, described Hamdans contributions as toward the less
signicant end of the spectrum.48 In accord was Khalid Sheikh Mohammed
himself, mastermind of the 9/11 attacks, who described Hamdan as a primitive
Bedouin t only for tasks such as changing tyres and washing cars.49 Hamdans
criminal trial, which turned on questions of scienter, eventually led to Hamdans
split verdict, light sentence, and return to Yemen. The appropriateness of his
preventive detention, however, is harder to assess. When the harms that an
organization seeks to inict reach a certain catastrophic magnitude (such as the
possibility of nuclear or biological attacks), even preventive measures that have only
a small chance of thwarting them may well be deemed proportional.50
The general policy of avoiding even small chances of great harms is sometimes
described as the precautionary principle, which holds that if an action or policy
might cause severe and irreversible harm to the public or the environment, the
proponents of the action should bear the burden of proof of no harm, in the
absence of a scientic consensus that the harm will not occur.51 The implications of
widespread adherence to an analogous principle in the preventive detention context
are sobering: we should expect to see large numbers of low-level terrorist suspects
detained, coupled with surveillance and/or detention of large numbers of people
who are simply members of ethnic or religious groups or organizations from whom
terrorists are commonly recruited. Such policies are, in fact, not very different from
what happened in the USA in the months following the 9/11 attacks. If one nds
such policies troubling, however, it is not apparent that the constraint of propor-
tionality will preclude them, as the concept of proportionality crucially leaves
undetermined the relative weights of gravity of harm and likelihood of harm in
the calculus. This problem is mitigated in the criminal context by the requirement
of scienter, which precludes liability for serious crimes of risk creation in the absence
of a subjective or objective appreciation of a high likelihood of causing harm.52
The question of the proportionality of detaining low-risk/high-harm individ-
uals is related to another concern that one might raise about calculations of

48 Salim Hamdans Sentence at Guantanamo: A Military Juror Speaks blog post (10 August

2008), available at <http://www.andyworthington.co.uk/2008/08/10/salim-hamdans-sentence-at-


guantanamo-a-military-juror-speaks/>.
49 W Glaberson, Bin Ladens Former Driver is Convicted in Split Verdict New York Times,

6 August 2008.
50 There may be a variety of reasons for deeming an individual to present a low risk of a

catastrophic harm. The individual may, like Hamdan, be a peripheral player in a large organization.
Or the individual might be a more central player, but one who is redundant or easily replaced. Or the
individual might be the sole or central source of the harm, but very unlikely to be able to bring it about.
All of these situations present the same problem of apportioning appropriate weight to the likelihood
as opposed to the gravity of harm.
51 C Sunstein, Laws of Fear: Beyond the Precautionary Principle (2005) (explaining various versions

of and critiquing the precautionary principle).


52 American Law Institute, Model Penal Code }2.02 (denitions of reckless and negligence).
Proportionality as a Limit on Preventive Justice 209

proportionality in the preventive as opposed to the criminal realm. Even when


preventive policies formally call for high standards of proof, it may be harder for
decision-makers to adhere to them than in the criminal context. When punish-
ment is at stake, the harm has already occurred, and thus a false negativean
incorrect acquittalwill not inevitably produce a further harm (other than the
intrinsic harm of a failure of retributive justice and, in some cases, the release of a
dangerous individual who may re-offend). In contrast, in the preventive context, a
false negativean incorrect failure to detainwill very likely produce the feared
harm. Of course, this feature of prevention is generally the best reason to prefer
preventive to punitive actions, but it poses an obstacle in the form of human
cognitive bias to the implementation of high standards of proof.53
Finally, the question of what to do with the low-risk/high-harm suspect repre-
sents one example of a more general difculty for the calibration of proportionality.
Just as it is a challenge for retributive justice to specify a particular punishment or
even a range of punishments, it is likewise difcult to say when connement
(as opposed to some lesser measure) is preventively justied, and for how long.
Time, like money, is innitely divisible into smaller and smaller units, so it becomes
very difcult to say with certainty when a sentence or period of connement is too
long, or a punitive ne is too high. The Supreme Courts relatively robust use of
constitutional proportionality to police grossly excessive punitive damages awards
in civil cases demonstrates the inevitably ad hoc nature of the proportionality
constraint: when nally pressed to set a constitutional cap on permissible punitive
damages, the Court came up with a presumptive 9 : 1 ratio, stating that few awards
exceeding a single-digit ratio between punitive and compensatory damages . . . will
satisfy due process54a standard that owes perhaps too much to the happenstance
that humans have ten digits rather than eight or 12. The lack of an analogous
denominator to compensatory damages in criminal cases may partially account for
the Courts unwillingness to police grossly excessive criminal sentences as robustly
as it does punitive damages,55 leaving criminal punishments outside the capital
context essentially unregulated. The Courts arbitrary and unsatisfying forays into
constitutional proportionality review in the punitive damages and sentencing con-
texts demonstrate well the difculty of performing the proportionality calculus and
support the rueful observation of one commentator that proportionality is both an
inherently alluring and inevitably unsatisfactory measure of constitutionality.56

53 This bias may be exacerbated by the greater invisibility of false positives in the preventive as

compared to the punitive realm. One who is incorrectly convicted of a criminal offence may later be
proven innocent (and presumably compensated for the error). It is impossible to disprove a prediction
of future dangerousness for one who is detained as a result, and thus false positives in the preventive
detention context cannot be xeda problem in its own right, but also one that may further bias the
initial decision to detain.
54 State Farm Mut. Auto. Ins. Co. v Campbell, 538 US 408, 424 (2003).
55 PS Karlan, Pricking the Lines: The Due Process Clause, Punitive Damages, and Criminal

Punishment (2004) 88 Minnesota Law Review 880, 907 (By their very nature, then, damages cases
provide a piece of information that criminal cases lack: an indication of the gravity of the offense that
uses the very currency in which punishment is to be meted out).
56 Karlan (cited in n 55) 882.
210 Carol S Steiker
Pretext. Imagine, however, that despite its practical and conceptual difculties, a
robust practice of constitutional proportionality review of preventive detention
practices existed. In such a world, it is possible (though not certain; discussed under
Calibration) that courts would order the release of some little sh like Hamdan
on the ground that their degree of dangerousness did not justify long-term
connement. What might happen then? We do not really need to speculate here,
because something close to this situation existed in the months after 9/11 in the
USA. Federal law enforcement ofcials were scrambling to respond both to the
attacks of 9/11 and to the new anthrax scare. However, they had no general
statutory authority to detain dangerous citizens on American soil (and only ques-
tionable authority to detain enemy combatants once the invasion of Afghanistan
began). Just as in a hypothetical world of judicial enforcement of a robust propor-
tionality constraint on preventive detention, law enforcement ofcials in the wake
of 9/11 believed that there were dangerous people who needed to be detained, but
whose detention on grounds of dangerousness was unlawful.
What happened next demonstrates the limits of even a robust practice of
proportionality review of preventive connement. In the months following 9/11,
despite the absence of direct legal authorization, American government ofcials
managed to detain large numbers of people who they believed were dangerous by
pressing into service other, pre-existing detention regimes whose preconditions
could easily be metsuch as the massively ramped-up use of both immigration
detention and the previously little-used material witness statute.57 Such deten-
tions required no proof of dangerousness; rather, they required simply the demon-
stration of a violation of immigration law or a need to preserve possible testimony
in connection to an on-going criminal investigation. It seems indisputable that
large numbers of these detentions were pretextual: although those detained gener-
ally did meet the (non-demanding) legal preconditions for their detentions, the
government would not have sought their detentions without a belief that they
should be detained because of their dangerousness.
This example demonstrates the inefcacy of a proportionality constraint
especially a robust onewithout an additional, external limit on the pretextual
use of other modes of detention. However, there are some signicant conceptual
and practical impediments to a workable pretext doctrine. First, it is hard to know
what to do with so-called mixed motive caseswhen government ofcials act in
part for reasons intrinsic to the statutory scheme they invoke, but also in part for
reasons of dangerousness.58 Secondly, it is hard to nd reliable evidence of
government motive other than the testimony of the challenged government
ofcials, which is an invitation to undetectable and thus unpunishable perjury (or
at the very least to false consciousness). These considerations no doubt informed

57 NV Demleitner, Immigration Threats and Rewards: Effective Law-Enforcement Tools in the

War on Terror? (2002) 51 Emory Law Journal 1059 (describing and critiquing ramped-up use of
immigration detention after 9/11). For the unprecedented use of the material witness statute, see the
litigation in Ashcroft v al-Kidd, 131 S.Ct. 2074 (2011).
58 See the governments briefs in Ashcroft v al-Kidd (cited in n 57).
Proportionality as a Limit on Preventive Justice 211

the Supreme Courts refusal to allow claims of pretext in the Fourth Amendment
context.59 The formidable challenges to preventing pretextual evasions demon-
strate the limited power of even a robust and strictly enforced proportionality
constraint on preventive detention.
Perverse interactions with criminal law. Even if a robust proportionality constraint
was enforced and pretextual evasions were curtailed, the governments perceived
need to conne dangerous individuals would nd an outletmost likely in
criminal law. Already, there are many preventive crimes, such as inchoate and
possessory offences, which aim at preventing future harm and often result in the
connement of the convicted perpetrator. Further innovations, should non-penal
preventive efforts be curtailed, are not hard to imagine. For example, in the
sexually violent predator context, if the current scheme of post-sentence civil
commitments were substantially restricted by robust proportionality review, then
legislatures might simply raise sentences for sex offences across the board, or permit
predicted dangerousness to determine sentences within a broadened range, thus
allowing the same degree of detention of sex offenders prospectively. In the
terrorism context, the government might turn to the further creation or expanded
use of crimes like material support of terrorism, which authorizes lengthy sen-
tences for those who provide any support of any kind to organizations that they
know have been deemed terrorist organizations by the US government, even if they
do not know that their support will aid any terrorist project, and even if their
support is not in fact causally linked to any harm. The material support statute
thus includes within its ambit contributions to organizations (like Hamas, for
example) that conduct humanitarian as well as terrorist activities, even if the
contribution is specically targeted to the organizations humanitarian projects.
These potential statutory or enforcement innovations on the criminal side pose a
problem analogous to the one explored (under Calibration) regarding the prevent-
ive detention of low-risk/high-harm suspectsthe problem of the low-culpability/
high-harm offender. Consider again Salim Hamdan, Osama bin Ladens driver,
after his conviction for material support of terrorism. The terrorism that he
supported was really, really badbut his support was relatively small and his
culpability relatively low (knowledge as opposed to purpose, given his acquittal
on conspiracy charges). Nonetheless, the material support statute authorized a
possible life sentence for Hamdan. As it happened, the military commission
returned what was viewed by many as a surprisingly light sentence of only ve
and a half years.60 But the potential for long-term incarceration through criminal
sentencing of offenders like Hamdan demonstrates the criminal laws ability to pick
up the slack created by a tightly constrained system of preventive incarceration.
Thus, the only way for a proportionality constraint on preventive connement to
serve as a constraint on government power is to have some similarly robust

59 Whren v United States, 517 US 806 (1996) (rejecting pretextual stop challenges under the Fourth

Amendment).
60 AC McCarthy, Disgraceful Hamdan Sentence Calls Military Commissions into Question

National Review, 8 August 2008 (calling Hamdan sentence astounding in its leniency).
212 Carol S Steiker
constraint against disproportionate criminal sentencing. This recognition is a
corollary to the problem of pretext: given the inevitable slippage that tight
regulation in one area will cause, effective regulation must extend to the area of
slippage, whether it is immigration regulation, material witness detentions, or
innovations in criminal law. But also parallel to the problem of pretext, robust
criminal proportionality review does not currently exist; as we have seen, the
Supreme Courts current regulation of criminal sentencing under the Eighth
Amendment is highly deferential to the point of virtual extinction.61 Moreover,
the development of a robust criminal proportionality doctrine would pose many of
the same conceptual and practical problems to the development of a robust
proportionality constraint in the preventive context that have already been
reviewed. The problem of slippageas illustrated both by the problem of pre-
textual detention and enhanced preventive criminal punishmentpresents a
daunting practical challenge for the efcacy of a proportionality constraint in the
preventive context.
Occupying the justicatory eld. A very different problem that proportionality
poses as a constraint in the context of preventive justice might be termed a
rhetorical one. The very widespread acceptance of proportionality as a key limit
on government power makes reliance on the concept susceptible to a kind of
stealthy normative hegemony. It is all too easy to slip from accepting proportion-
ality as a necessary condition for preventive justice to seeing it as a sufcient
conditionas a normative justication in itself for the practice of preventive
connement. In this way, proportionality can serve as the thin edge of the wedge
for a consequentialist as opposed to a deontological frame for the question of
preventive justice. It is easy to split the concept of proportionality down the middle,
concluding that proportionality refers to the demands of retributive justice in the
criminal context (calibrating punishment to desert), and to the demands of efcacy
in the preventive context (calibrating prevention to dangerousness). The fallacy
here is to assume the existence of a normatively justied preventive realm and then
to govern it not by its normative foundations (whatever they may be), but by the
familiar constraint of proportionality. The normative foundations of the preventive
realmthough bracketed in this chaptershould not be obscured by proportion-
alitys own normative allure, which should not be mistaken for a full account of the
boundaries of prevention.

C. Conclusion
How much normative allure should proportionality rightfully have? That is the
question that I have tried to address in this chapter, rst sketching as generously as
I could the set of issues and concerns that a robust constraint of proportionality could
fairly be claimed to address in the preventive realm. In this sketch of proportionalitys

61 Ewing v California, discussed in text at n 7.


Proportionality as a Limit on Preventive Justice 213

promise, I have also tried to be careful about where proportionalitys reach was
qualied or where it simply gave out and needed to be supplemented with some
further normative constraint or justicatory account. I have raised some challenges,
both conceptual and practical, to the power of proportionality as a constraint on
preventive connement. I hope this account is fair and balanced, but in reviewing the
overall picture, I am left with a sense of scepticism about proportionalitys potential as
a robust normative constraint: the qualied nature of proportionalitys promise
combined with the daunting nature of the pitfalls it must negotiate should give
pause even to proportionalitys many enthusiasts.